10 Introduction to criminal justice Introduction MAKE CASE NOTES ON: o Austin and others v UK o Castorina v Chief Constable of Surrey

y o Holgate-Moha ed v !u"e #$%&'( o Christie v )ea*hins"y #$%'+( o ,o-. Ca /bell and Hartley v UK 0$%%12 o 3 v Sa uel #$%&&( o A brose v Harris #41$$( o Saunders v UK o 5ohn Murray v UK o Condron v UK o Ed6ards v UK o 3o6e and !avis o ,itt v UK o 3 v Horn*astle #411%( o T and others v 3 #411%( o 5. S. M v 3 #41$1( o 3 v Mir7a #411'( o 8regory v UK #$%%+(

 This *ha/ter /rovides an outline and introduction to the criminal justice process. 9e 6ill a//re*iate that. :ust as 6ith our /revious studies. there are tensions that run throughout the criminal justice system; A brief introdu*tion 6ill outline the institutions. recent history and problems of the criminal justice system. 6ith a /arti*ular focus on miscarriages of justice and the recurrent problem of racism and policing. 9e 6ill then turn to e-a ine in detail an interlin"ed set of the es and issues; 9e 6ill loo" at ele ents of the *ri inal :usti*e /ro*ess: in /arti*ular. police powers to stop and search and powers of arrest; 9e 6ill then turn our attention to the trial process itself. and loo" at the

rights of the defence. in /arti*ular. the presumption of innocence and the doctrine of equality of arms; 9e 6ill then examine confession evidence; One of the the es that runs through this *ha/ter is the human rights context of the criminal justice system. and. to /i*" u/ on a *entral the e of this sub:e*t guide. our referen*e /oint 6ill be Article 6 of the Euro/ean Convention on Hu an 3ights 0ECH32 0although 6e 6ill also a"e a brief study of Arti*le <2; The final se*tion of the *ha/ter investigates re*ent reforms of the jury and see!s to place the jury in the context of Article 6; ESSENT=A) 3EA!=N8 o 8earey et al;. Cha/ter $>. $?. $4

10.1 "he nature of the criminal justice process ESSENT=A) 3EA!=N8 o 8earey et al;. Cha/ter $> 8earey et al;. Cha/ter $>. a"es referen*e to Herbert @a*"erAs "he limits of the criminal sanction 0$%>&2; Packer- tension within- due process and crime control @a*"er suggests that one *an understand any of the tensions in the criminal justice system if 6e thin" in ter s of a broad *onfli*t bet6een vales: #"he criminal sanction is at once prime guarantor and prime threatener of hu an freedo ;A @a*"er is /ointing out the /aradothat underlies *ri inal :usti*e: criminal sanctions #guarantee# the freedom of *iti7ens by ensuring that those in brea*h of the *ri inal la6 are /unished;

 Ho6ever. at the same time. the #right# to sanction places a great coercive power in the hands of the state; @a*"er also refers to the tensions between due process and crime control to elaborate this /roble ; o $ue process values serve to protect the defendant and ensure that the inno*ent are not 6rongly *onvi*ted; o %rime control values ensure that the police and the prosecution have ample resources and o//ortunities in the trial /ro*ess to *onvi*t the guilty; The crime control&due process model restates the paradox of criminal justice at the level of /oli*ing and the trial;

L.Bingham slightly differ approachmore serious crime, more public interest to convict however more constitutional protection needed to be given @a*"erAs insight - the /arado- of *ri inal :usti*e - has been a//roa*hed in a slightly different 6ay by 'ord (ingham in )cintosh v 'ord Advocate #411$( 'ord (ingham dire*ted the Court to a /assage fro Sa*hs 5 in the Constitutional Court of South Afri*a *ase of "he *tate v %oet+ee: o There is a paradox at the heart of all *ri inal /ro*edure. in that the more serious the crime and the greater the public interest in securing convictions of the guilty. the more important do constitutional protections of the a**used be*o e;

o The starting /oint of any balan*ing inBuiry 6here constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and sub:e*ted to igno iny and heavy senten*es. massively outweighs the public interest in ensuring that a particular criminal is brought to boo!... o Hen*e the presumption of innocence which serves not only to protect a particular individual on trial. but to maintain public confidence in the enduring integrity and se*urity of the legal syste ; 0State v Coet7ee #$%%+( 4 )3C <%? at >++2 ,or )ord Cingha the *ontradi*tion a//ears to be that the rules of criminal procedure both see! to convict the guilty and provide safeguards that ma!e it very difficult to do so;

 ,hen fa*ed 6ith conflicting values. the courts can only try to reach a compromise. (ut should there be a predominant valueD Arguably it is that the innocent should not be convicted. Our follo6ing analysis suggests that this might be somewhat high minded. 9e 6ill /resent a /i*ture of the *ri inal :usti*e syste as riven by tensions between due process and crime control and other political institutional and social problems.

 ,or greater de/th. you should *onsider studying the o/tional Cri inology *ourse in the ))C /rogra e; 9e *an. ho6ever. assert one general /oint: o criminal law provides a medium through 6hi*h to express conceptions of right and wrong. to regulate behaviour in A/ro-so*ialA 6ays and to clearly state what is considered so #anti-social# or harmful that it is /unished 6ith the rigours of state-s/onsored /unish ent; o The *ri inal la6 0often *alled A/enal la6A in other *ountries follo6ing the 3o an la6 tradition2 provides sanctions against those who brea! the rules. o =t is *learly the site of state ba*"ed /o6er;

10.. Agencies of the criminal justice system 5ago. in 8earey et al; Cha/ter $>. 6rites that there is an #assumption# that the #institutions of the criminal justice system... operate/s0 in an objective fashion 6ith one *o on ai to produce a 1seamless1 system# 6here agen*ies *oo/erate to /oli*e and /rose*ute *ri inals; To understand this argu ent we need first of all to deal with some basic definitions; The *ri inal :usti*e syste involves a wide range of agencies and interests.

 They in*lude: the @oli*e Servi*e the Cro6n @rose*ution Servi*e the Serious ,raud Offi*e other investigatingE/rose*uting authorities 0su*h as the =nland 3evenue and the Health and Safety E-e*utive2 MagistratesA *ourts the Cro6n Court the A//eal Courts the Cri inal Cases 3evie6 Co ission the @rison Servi*e the National @robation Servi*e for England and 9ales the Cri inal !efen*e Servi*e the Cri inal =n:uries Co /ensation Coard for vi*ti s other vi*ti and 6itness *are servi*es;

10.2 "ensions in the criminal justice system All *o entators agree that criminal justice is a ulti-layered arena of social activity that contains many conflicts and competing policies; A constant dilemma is how to achieve a proper balance between the /rovisions of criminal law and the freedom of the individual; ,urther ore. the boundaries of the *ri inal la6 *hange over ti e; "hey are not always set by the outcome of purely rational debate and argu ent; "hey also reflect the preferences - prejudices even - of politicians and those who influence public opinion 06e return to these the es in our dis*ussion of senten*ing belo62;

 As 3ago /oints out in Cha/ter $> of 8earey et al;. A#t(he criminal justice system is best understood therefore as a series of processes with many of its practitioners wor!ing with different values.# =t is worth remembering this realist vision of criminal justice as you read through this *ha/ter;

 5agoAs a**ount is also infor ed by the idea that the criminal justice system is part of the prisonindustrial complex. 9hat does this eanD

9e *an borro6 an insight from the wor! of )ichael 4oucault. ,ou*ault dra6s our attention to the contradictions that #criminality# introduces into the idea that we are all equal subjects of the law. ,or ,ou*ault. law creates criminality: o ;;;It would be hy/o*riti*al or naive to believe that the law was made for all in the name of allF ;;; o it would be more prudent to recogni+e that it was made for the few and that it was brought to bear upon othersF

o that in /rin*i/le it a//lies to all *iti7ens. but that it is addressed /rin*i/ally to the ost nu erous and least enlightened *lasses;;; 0,ou*ault. $%+<. /;4+>2; 9hether or not you agree 6ith ,ou*ault. there are certain interests that continue to benefit from crime. The *ri inal :usti*e syste business; is big

Primary objective seemed not the prevention of crime The *ri inologist 5ils %hristie 041112 has 6ritten a boo" entitled !rime control as industry that warns of a spreading semiindustrial empire of institutions and prisons in the 9estern 6orld; The boo" is subtitled To6ardsgulags. 6estern style. a referen*e to the great Ae /ireA of /risons and for*edlabour *a /s that under/inned the Soviet Union; =n the United Kingdo the criminal justice system certainly employs many people and consumes a considerable amount of public money: in 4114 around G$4 billion a year 0or G411 for ea*h an. 6o an and *hild2;

 Over half 0G+;< billion2 6ent on /oli*ing. follo6ed by the @rison Servi*e 0G$;& billion2. *ri inal legal aid 0G1;% billion2 and the @robation Servi*e 0G1;< billion2; 6olitically. the rhetoric of #war against crime# eans that there is little public opposition to spending more. The *riti* ay note that if this were an industry devoted to a product - namely the reduction of crime the fact that the system seems to fail in its prime objective would lead to a questioning of the service and a search for new products.

10.7 6olicing ESSENT=A) 3EA!=N8 o 8earey et al;. Cha/ter $> 3ago argues in Cha/ter $> of 8earey et al; that policing by consent has bro!en down over the #last thirty years# or so; 8e focuses on the idea that policing should be lo*al - hen*e more responsive to local needs and more in touch with the communities of those people #being policed;A This the e is connected to a concern with racism and the issue of legitimate policing. or policing by consent; 8e also touches upon !ettling 9public order policing: and terrorism.

"errorism and Policing 9e 6ill start with so e ba*"ground on the *on*ern 6ith terrorism; ,irst of all. 6e 6ant to develo/ 5agoAs /oint that policing has been influenced by #an attempt to respond to the perceived increased threat of terrorism;A 9e 6ill then go on to loo" at racism in the context of the murder of *tephen 'awrence. the broader issues of legitimate policing and problems arising from police use of stop and search /o6ers; =t is 6orth re e bering that policing against terrorism has something of a history;

Police power-racism, stop and search power In the context of the (ritish criminal justice system. the scrutiny of police powers - and indeed. some attempt to achieve a balance between due process and crime control -6ere products of a series of miscarriage of justice cases. The miscarriages *on*erned individuals who were wrongly prosecuted for committing terrorist acts on behalf of the I;A; These notorious instan*es of the failure of criminal justice are "no6n as the *ases of the <uildford 4our. the )aguire *even and the (irmingham *ix; =n all these *ases. the defendants had their convictions quashed by the %ourt of Appeal 9%A:. The government went on to announce the setting up of the ;oyal %ommission on %riminal

3ustice on the day that the (irmingham *ix were set free. 9e 6ill briefly loo! at the structural reforms proposed and accepted by both the )ay inquiry into the <uildford 4our and the ;unciman %ommission. 6hi*h re/orted in $%%?. and the establishment of the %riminal %ases ;eview %ommission in $%%+; Although this re/resents an i /ortant stru*tural refor . there are still broader and ore troubling Buestions 6hi*h have to be as"ed; These Buestions are about the context of policing and the context of criminal justice; Ashworth 0$%%&. 41112 has argued that legal rules are often regarded as the primary means of preventing errors. but the miscarriages cases show that many errors deliberate or accidental. have ta!en place despite the existence of legal

rules and powers that 6ere to *over the /ro*esses;

eant

8ence we need to loo! for wider solutions; 6ractical measures include the need for training. and /ro/erly adhering to the codes of practice in the 6olice and %riminal =vidence Act 1>?7 96A%=:. but the real operational context is the institutional culture in 6hi*h the various de*isions are ade; Ashworth tal!s in terms of inculcating an ethical perspective on decision ma!ing in the *ri inal /ro*ess; 9e 6ill develo/ these /oints belo6 6hen 6e loo" at the Ma*/herson re/ort into the urder of Ste/hen )a6ren*e; The res/onse to the is*arriages *ases did address institutional refor ;

 As entioned above. one of the most important recommendations of the 3oyal Co ission 6as the creation of %riminal %ases ;eview %ommission 9%%;%: by the %riminal Appeals Act 1>>@; The %%;% replaced the powers of the 8ome *ecretary under s.1A of the Cri inal A//eals A*t $%>& to review criminal convictions and provided an independent element in the appeals process. 9hilst the CC3C goes so e 6ay to re/airing the syste . significant problems remain 0see Sanders and Houng in M; Maguire. 3; Morgan and 3; 3einer O-ford handboo" of *ri inology 041$42. /;&>$2; @ros/e*ts for *hange de/end in /art on oneAs vie6 of the reasons for the failure of criminal justice to live up to its rhetoric. 9e 6ill e-a ine the Anor ative ethodA in /oli*ing belo6F

 ho6ever. it is unli!ely that any single method of reform institutional ethical or other6ise. will begin to deal with the problems of the *ri inal :usti*e syste ;

 5ago dra6s attention to t6o /roble s that 6e 6ant to e-a ine in detail: o the Ma*/herson 3e/ort that shed light on the #institutional racism# of the Metro/olitan @oli*e 0)ondon2 and o problems arising from stop and search powers.

10.@ "he murder of *tephen 'awrence and the )acpherson ;eport Iuestions about miscarriages of justice 6ere raised follo6ing the racist murder of *tephen 'awrence who was stabbed to death 6hile 6aiting at a bus sto/ in south )ondon; The =nglish legal system failed to bring all his !illers to justice in a ti ely anner; In contrast to the #I;A %ases#. 6here innocent men and women were convicted of crimes they did not commit. the 'awrence Inquiry revealed failures in the criminal justice system to convict individuals when evidence indicated their guilt; =n $%%+ a :udi*ial inBuiry 6as set u/ by the Ho e Se*retary under a for er High Court :udge. Sir 9illia Ma*/herson;

 The )acpherson ;eport 0C '4>4=2 6as /ublished in $%%%; The report accuses the )etropolitan 6olice of #institutional racism# and made a series of recommendations.

#ncrease prosecution power The most radical recommendation 6as to end the ancient principle of double jeopardy 6hereby a person cannot be tried more than once for the same crime. or substantially the sa e *ri e; This derived from a failed private prosecution by Ste/hen )a6ren*eAs father against the chief suspects in the case. The judge ruled that there was insufficient evidence to proceed and ordered the jury to acquit the three men; The )acpherson ;eport recommends that the %A should have the power to permit a new prosecution after acquittal where #fresh and viable# evidence is presented.

Black Boy murdered case =n 41$4 two of *tephen 'awrence#s attac!ers were found guilty of murder; 9e 6ant to have a ore detailed loo! at the ;eport#s conclusions: o '>;$ The *on*lusions to be dra6n fro all the eviden*e in *onne*tion 6ith the investigation of *tephen 'awrence#s racist murder are clear; o There is no doubt but that there were fundamental errors. o The investigation was marred by a combination of professional incompetence. institutional racism and a failure of leadership by senior officers #;;; (

o >;' #;acism# in general terms consists of conduct or words or /ra*ti*es 6hi*h advantage or disadvantage /eo/le because of their colour culture or ethnic origin. o =n its ore subtle for it is as damaging as in its overt form. o >;?' #Institutional ;acism# consists of the collective failure of an organisation to provide an appropriate and professional service to people because of their colour culture or ethnic origin; o =t *an be seen or dete*ted in /ro*esses. attitudes and behaviour which amount to discrimination through unwitting /re:udi*e. ignorance. thoughtlessness. and racist stereotyping 6hi*h disadvantage minority ethnic people;

o '>;4> At its ost star" the *ase against the /oli*e 6as that ra*is infe*ted the M@S and that the *atalogue of errors *ould only be a**ounted for by so ething ore than in*o /eten*e; o If corruption and collusion did not play its part then. say the *riti*s. the case must have been thrown or at least slowed down because officers approached the murder of a blac! man less energetically than if the victim had been white and the urderers bla*"; #;;; ( o '>;?$ The need to re-establish trust between minority ethnic communities and the police is paramount. o Su*h distrust and loss of *onfiden*e is /arti*ularly evident in the 6idely held vie6 that :unior offi*ers dis*ri inate in /ra*ti*e at o/erational level. and that they support each other in such discrimination...

o '>;?4 *ee!ing to achieve trust and *onfiden*e through the de onstration of fairness will not in itself be sufficient. o It must be accompanied by a vigorous pursuit of openness and accountability a*ross @oli*e Servi*es; o =ssentially we consider that the principle which should govern the 6olice *ervices. and indeed the *ri inal :usti*e syste . is that they should be a**ountable under all relevant legislative /rovisions unless a *lear and s/e*ifi* *ase *an be de onstrated that su*h a**ountability 6ould be har ful to the /ubli* interest;;;

,hat are the chief findings of the )acpherson ;eport as suggested by the 9edited: conclusion aboveB The Ma*/herson 3e/ort drew attention to the institutional racism of the )etropolitan 6olice and recommended rebuilding the trust between the police and the *o unities they served; 8ow can we understand institutional racismB The Ma*/herson 3e/ort. and the concept of institutional racism. has to be seen in the context of official reports into both policing and civil disorder; 'ord *carman#s ;eport into the (rixton $isorder in $%&$ had rejected the allegation that (ritish institutions were systematically involved in racial discrimination;

 The li itations of )ord S*ar anAs definition of ra*is 6ere a//arent to the )a6ren*e =nBuiry; (oth the 6olice %omplaints Authority 96%A: and the 6olice had failed to understand the problem of discrimination. as they saw it as restricted to a few #rotten apples# who #let the side down# 0C '4>4-=. at >:$'2; =qually at fault was the practice of following the #traditional way of doing things#; o This racism is normal for them The overarching aspect of this ideology is the reluctance to come to terms with the need to police a multi-racial society; o Difficult for police up-to-date, openness and accountable, equality behind the racism issue being damaged which is fundamental value for criminal justice

 4or a police force that is attached to a notion of unarmed and consensual policing. su*h a refusal to move with the times is profoundly damaging.

 The )acpherson ;eport also found that the culture of policing does not encourage a critical selfunderstanding that would ma!e prejudice easier to identify and to challenge; Eviden*e fro offi*ers in the Cla*" @oli*e Asso*iation 0C@A2 drew attention to a powerful #occupational culture# 0>:4&2 6hi*h 6as shaping or influencing blac! officers# own views about race and crime from the perspective of #white experience. 6hite beliefs and 6hite valuesA; This 6as self-/er/etuating . as white officers tended only to meet blac! people in #confrontational# situations that su//orted assumptions and stereotypes about bla*" *ri inality and la6lessness; As the )a6ren*e =nBuiry 6as told. it #may be# that these attitudes are prevalent throughout (ritish society.

 Su*h a *on*ern 6as obviously outside the =nBuiryAs ter s of referen*e. although so e tentative suggestions 6ere ade about 6ider attitudes; As institutional racism it is expressed not only in the failures of the 'awrence murder investigation. but also in the disparity in the numbers of blac! people stopped and searched. the underre/orting of Ara*ial in*identsA and the inability of the police to ta!e the issue seriously at the level of training 0>:'<2 0A Her Ma:estyAs =ns/e*torate of Constabulary 3e/ort: 9inning the ra*e sho6ed that before $%%&. not a single offi*er had re*eived training in ra*is a6areness2; The law might begin to understand racism through the concept of #institutional# discrimination 0>:442;

$istory of Black people feed the racism issue The 3e/ort itself refers ba*" to a te-t by t6o bla*" A eri*an a*tivists. Sto"ely Car i*hael and Charles J; Ha ilton. to develo/ this definition; ;acism must be seen as operating within the most #respected forces# and as a combination of both #active# and #pervasive# racist attitudesF underlying these is a belief in blac! inferiority; "his does need supplementing by assumptions about blac! lawlessness that have their o6n /arti*ular history; o ,or instan*e. one a**ount of bla*" history in Critain Buotes a Metro/olitan @oli*e Co issioner as saying: #in the 3amaicans you have people who are constitutionally disorderly...It#s simply in their ma!eup; o "hey are constitutionally disposed to be anti authority#

0@; ,ryer Staying /o6er: the history of bla*" /eo/le in Critain; 0)ondon: @luto @ress. 41$122; %ugging &face' of black people Also i /ortant is the /er*e/tion of ugging as a Ara*eA *ri e; Although offi*ial Ho e Offi*e investigations into ra*e relations tended to stress the role of a inority a ongst a fairly res/e*table a:ority. the panic over mugging in the later 1>A0s led to a series of violent confrontations between the police and blac! youths; Still the sub:e*t of *o /le- and fier*e debate in *ri inology and /oli*y *ir*les. it is diffi*ult 6ithin the s/a*e of this *ha/ter to a**ount for these e-/losions of violen*e;

Cne fact is salient.

Cfficial accounts tended to play down 9ma!e sth less important: the political motivations of the rioters.

 =n the 6a"e of the 5otting 8ill riots of 1>A6. a new set of stereotypes was created; The image of the blac! mob entered into the public imagination: violence seemed to a"e the lin! between blac!ness and disorder more complex and profound 0See @; 8ilroy AinAt no blac! in the Dnion 3ac!; 0)ondon: 3outledge. 41142; This in turn led to a new escalation in the tensions that had produced rioting in the first /la*e; The police strategy of containment and aggressive use of powers of search and arrest led to further riots in the $%&1s;

Lawrence #n(uiry- racism no more acceptable After the 'awrence Inquiry these attitudes and tactics are no longer acceptable; =n the 6ords of Sir 5ohn 9ood*o*". the Chief =ns/e*tor of Constabulary in $%%4. the =nBuiry reveals a wider #cultural failure# 0>:>$2; Thus. in its re*o endation for ta*"ling ra*is . there is a need for. in the 6ords of the 3everend !avid 9ise. a #radical transformation# involving not only the police but all levels of society. The =nBuiry be*o es the /oint at 6hi*h a /reviously radi*al *ritiBue enters 6ithin offi*ial dis*ourse ; Again. 6ith referen*e to the 6ords of Sir 5ohn. the police remain a 1>th century institution a #mechanism set up to protect the affluent fro 6hat the Ji*torians des*ribed as the dangerous *lassesA 0>:>$2;

10.6 "he legitimacy of policing Our study of ra*is raises the issues of how policing might become more legitimate. 3e*ent resear*h has ade use of the notion of /ro*edural :usti*e as a 6ay of rebuilding the trust that /eo/le have of the /oli*e; ,hat then is legitimacyB o /'0egitimacy exists when the policed regard the authorities as having earned an entitlement to command. creating in themselves an obligation to obey; o If people willingly offer their obedience to systems of authority that command legitimacy. questions about the #drivers# of legitimacy become of central policy importance.

0a2 #that ean *iti7en obey *o and fro the /oli*e and ho6 the *o and for ed is i /ortant(

 These insights are built on the findings of A eri*an resear*hers; o Contrasting instru ental and nor ative odels of *o /lian*e. Tyler argues that normative compliance is economically more viable and is more stable over time than instrumental compliance. 6hi*h - in the US *onte-t at least carries a growingly unaffordable social and fiscal cost. 0The *ase for su*h an a//roa*h 6ill be strengthened. of *ourse. as the need to redu*e /ubli* e-/enditure be*o es ore /ressing over the years ahead;2 0M; Hough et al; A@ro*edural :usti*e. trust. and institutional legiti a*yA 041$12 ' 0?2 @oli*ing 41?-$12 Instrumental methods of compliance assert the authority of the law as a coercive eans to6ards an end: crime control;

 5ormative methods of compliance relate to the arguments about legitimacy: in other 6ords. people obey the law not because they fear sanction but because they perceive that policing is a legitimate way of /rote*ting the *o unity fro *ri e; As Hough et al; /oint out. normative methods are less costly than instrumental methods; The normative method of policing would then provide at least some response to the problems of the prison industrial complex;

,hat evidence is there for the effectiveness of normative policingB - Procedural fairness more important than outcome fairness o On the basis of various surveys of the /ubli*. Tyler has de onstrated that public perceptions of the fairness of the justice system in the Dnited *tates are more significant in shaping its legitimacy than perceptions that it is effective. o An i /ortant distin*tion here is between a sense of justice based on process and one based on outcome. o TylerAs findings suggest that procedural justice - that is fair and respectful treatment that #follows the rules# - is more important to people than obtaining outcomes that that they regard either as fair or favourable to the selves; o =n other 6ords. in en*ounters 6ith the /oli*e. it is the quality of treatment received that is more important than the

objective outcome; 0Hough et al;. 41$12

Procedural fairness or outcome fairness will related to fair trial issue These argu ents would resonate with the ideas of moral personhood that are develo/ed in 8earey et al; 3e-read Cha/ter $> of 8earey et al; if you donAt understand this idea; 3e e ber that it relates to the moral authority of the court to punish citi+ens; 9e use the concepts of integrity participation and open justice to elaborate this idea; 9e deal 6ith these the es in the *onte-t of the *ri inal trial belo6; Cear in ind that the idea of procedural justice relates to policing. but it is also coordinate

with arguments about the legitimacy of the fair trial. 9e no6 6ant to see how these ideas might apply to powers to stop and search; As 5ago has argued. stop and search powers reveal real problems with the legitimacy of policing; 9here does the /roble lieD

Is it in the law itself or in the way in which the law is #used# by police officersD

10.6.1 6owers to stop and search Cur focus will be on the 6olice and %riminal =vidence Act 96A%=:. Our investigation 6ill fo*us on a nu ber of *on*erns: 6e 6ill be interested in the extent to which the Act balances police powers against safeguards on those powers; =f the Act balances police powers and safeguards. 6e ight be able to conclude that the problem of legitimate policing lies not so much with the law. as the way in which police officers put the law into effect. o #That ean if la6 is the /roble . then /oli*e only /erfor sub:e*t to la6; o =f la6 is not /roble . then it is the /oli*e /roble to follo6 the la6 6ith their o6n 6ay(

 @ACE begins by defining 6here the /oli*e *an e-er*ise their /o6ers: o $;K 6ower of constable to stop and search persons. vehicles et*; o 0$2 A constable may exercise any /o6er *onferred by this se*tion 0a2 in any place to which at the time 6hen he proposes to exercise the power the public or any se*tion of the public has access. on /ay ent or other6ise. as of right or by virtue of express or implied permission. or 0b2 in any other place to which people have ready access at the time 6hen he /ro/oses to e-er*ise the /o6er but which is not a dwelling ;

 Note subs;?: o 0?2 "his section does not give a constable power to search a /erson or vehi*le or anything in or on a vehi*le unless he has reasonable grounds for suspecting that he 6ill find stolen or prohibited articles Note also subs;>: o 0>2 =f in the *ourse of su*h a sear*h a *onstable dis*overs an arti*le 6hi*h he has reasonable grounds for suspecting to be a stolen or prohibited article he ay sei7e it;

A%"IEI"F 10.1 )oo" u/ @ACE @art = and study the definition of offensive 6ea/ons and /rohibited arti*les; Ho6 does @ACE define offensive 6ea/ons and /rohibited arti*lesD Cffensive weapons and prohibited articlesG 0+2 An article is prohibited for the /ur/oses of this @art of this A*t if it isa; an offensive 6ea/onF or b; an arti*le0a2 ade or ada/ted for use in the *ourse of or in *onne*tion 6ith an offen*e to 6hi*h this sub-/aragra/h a//liesF or 0b2 intended by the /erson having it 6ith hi for su*h use by hi or by so e other /erson; The A*t goes on to state: o The offen*es to 6hi*h subse*tion 0+20b20i2 above a//lies are a; burglary b; theft

A%"IEI"F 10.. No6 loo" u/ @ACE Code of @ra*ti*e A; Can a *onstable /erfor a sto/Esear*h on so eone on the basis of a Astereoty/i*alA understanding of 6hat a "ind of /erson is li"ely to doD The %ode of 6ractice stresses a number of points: an e-er*ise of sto/ and sear*h /o6ers cannot be discriminatory. ;easonable suspicion must rest on an #objective basis# and cannot be based on #personal factors# or #stereotypical images# or assumptions about #categories of people#; Although As/e*ifi* infor ationA ay give rise to reasonable sus/i*ion. a stop&search could be carried out in the absence of specific intelligence;

 The follo6ing /aragra/h is 6orth bearing in ind given our *on*erns about /oli*ing by *onsent: o *earches are more li!ely to be effective legitimate. and secure public confidence when reasonable suspicion is based on a range of factors; o The overall use of these powers is more li!ely to be effective 6hen u/ to date and accurate intelligence or information is communicated to officers and they are wellinformed about local crime patterns 0666;ho eoffi*e;gov;u"E/ubli*ati onsE/oli*eEo/erational-/oli*ingE /a*e-*odesE/a*e-*ode-a-41iiD vie6LCinary2;

Law has no problem but the institutional culture )etAs return to the Buestion 6e /osed above; =t 6ould a//ear that the law does balance powers with safeguards. 9e *ould also argue that stop and search powers are limited in extent 9i.e. a search of outer garments: and the places where they can be used 0they are not sear*h /o6ers of /ro/erty2; "he Act also provides clear limits on what the police can search for. Moreover. %ode A seems to stress that stereotypes cannot inform the de*ision to a"e use of sto/ and sear*h /o6ers; If we conclude that the law is clear and. at least on paper a reasonable balance of powers and safeguards. then 6e ight

have to *on*lude. along with the )acpherson ;eport that the problem is an institutional culture.

A%"IEI"F 10.2 9e no6 turn to a slightly different *on*ern; Throughout the sub:e*t guide 6e have been *on*erned 6ith reading and a//lying the la6; Dsing the sections of 6A%= outlined above ans6er the follo6ing Buestion: Constable A is on /atrol on Clan" Street. a residential road. at 1$;11 on % 5uly; He sees C 6al"ing along the road; Every no6 and then C sto/s and loo"s *losely at the houses he is /assing; A thin"s he re*ognises C as so eone 6ho loo"s li"e a burglar. as he is of Afro-Caribbean a//earan*e. and C sur ises that su*h /eo/le are li"ely to be *ri inals; He observes C 6al" u/ a short /ath a*ross a s all garden to a front door. ta"e so ething out of his /o*"et. and then re/la*e it in his /o*"et; C then turns to leave the /ro/erty. but. by this ti e. A has 6al"ed u/ the short /ath and *onfronts C; He as"s C 6hat he is doing; C re/lies Anothing; This is y houseA; A then tells C that he is going to sear*h hi Afor drugs and stuffA; C relu*tantly agrees; A finds a "ey and a nail file in CAs /o*"et and *onfis*ates the ; He then /la*es C under arrest;

 A. first of all. a//ears to have brea*hed s;$; o 6resuming that this is indeed (#s house. the power to stop and search cannot be used; A also a//ears to have breached the %ode of 6ractice as he has ade use of infor ation to infor his sus/i*ions about ( on the basis of a racist stereotype; He has also breached s.291: of the Act in not ma!ing a record of the search; 8e also failed to bring information to the attention of ( so e of the relevant infor ation under s..92:. Note that 6hilst A *an legiti ately sear*h for offensive 6ea/ons and /rohibited arti*les. he cannot search for drugs under 6A%=.

 8e would also need to show that he had valid grounds under s.2 for having reasonable suspicion.

10.6.. 6ublic order and !ettling 8earey et al;. Cha/ter $> Our *on*erns 6ith legitimate policing are not restricted to the context of racism. 9e 6ill follo6 5agoAs *on*erns 6ith /ubli* order in Cha/ter $> of 8earey et al; =n our *on*ern 6ith "ettling. 6e 6ant to fo*us on the role that human rights play in policing; As has been /ointed out. A#p0ublic order is listed as one of the five main threat areas in the *trategic 6olicing ;equirement;A 0666;ho eoffi*e;gov;u"E/ubli*ationsE /oli*eE/**E 6or"ing-beyond-for*eareaEdealing-6ith-/ubli*-orderD vie6LCinary2; "he police must #maintain security# whilst allowing #peaceful protests# to ta!e place.

 As 'ord $enning on*e /ointed out: #=nglish law upholds to the full the right of people to demonstrate and to a"e their vie6s "no6n so long as all is done peaceably and in good order# 03 v Chief Constable of !evon and Corn6all E- / Central Ele*tri*ity 8enerating Coard #$%&4(2; The s/e*ifi* issue 6e 6ill *on*ern ourselves 6ith in this section is the #management# of demonstrations;

 A re*ent re/ort /ut the issue 6ell: o 9e should re e ber that /ubli* /rotests have been /art of Critish /oliti*al life for a very long ti e; o o 6rotests are an important safety valve for strongly held views; o o =n addition. the right to protest in public is a synthesis of iconic freedoms: free asse bly and free s/ee*h; 0Her Ma:estyAs =ns/e*torate of Constabulary Ada/ting to /rotest. 666;h i*;gov;u"E ediaE ada/ting-to-/rotest411%1+1<;/df2

Public )rder *ct +,-.- public procession issue The 6ublic Crder Act 1>?6 created a power for a senior police officer to impose conditions on public processions ; %onditions for the imposition of a change of time place or route of a ar*h *an be ade if the police officer reasonably believes that the procession that would result either is serious public disorder serious damage to property or serious disruption to the life of the community; %onditions can also be imposed if the purpose of the march is to intimidate others. !ire*tions ay be given to those organising or ta"ing /art 6hi*h appear within the discretion of the police necessary to prevent destruction of /ro/erty. disorder or intimidation;

 An organiser who !nowingly fails to comply 6ith an i /osed *ondition is guilty of an offence. The defence is that failure was due to circumstances beyond the organiser#s control; Se*tion $' of the A*t a//lies si ilar *onditions to asse blies; "his ta!es us to concerns about policing and public order.

A%"IEI"F 10.7 3ead the Euro/ean Court of Hu an 3ights 0ECtH32 ruling in Austin and others v DH 9hy 6as there no brea*h of Arti*le <D !o you /refer the a:ority or the dissenting inority in this *aseD <ive reasons for your answer. Ma:ority vie6 The argu ent starts fro the assertion that the *ourt has to ta"e a**ount of Athe difficulties involved in policing modern societies# and Athe unpredictability of human conductA 6hi*h eans that the #police must be afforded a degree of discretion in ta"ing o/erational de*isions;A The *ourt ust also ta"e into a**ount develo/ ents in *o uni*ations that allow protestors to mobilise rapidly and the fluidity of public order situations.

 So. #Article @ cannot be interpreted in such a way as to ma!e it impracticable for the /oli*e to fulfil their duties of aintaining order and /rote*ting the /ubli*;A The correct way in determining whether or not a #!ettled# protestor has been deprived of his or her liberty is to as" a set of Buestions about Athe type duration effects and manner of implementationA of the *ontain ent easure that the /oli*e have used; =n assessing these Buestions. the *ourt has to also assu e that #the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good.# "he restrictions themselves ust. ho6ever. be limited in duration and extent;

 =ndeed. it ay be the *ase that *ertain *ontain ent te*hniBues a ount to a brea*h of Arti*le <; The *ourt stressed that #measures of crowd control should not be used by the national authorities# to stifle protest. o On /resent fa*t. there 6as no brea*h and The Court held that police had been required to contain large crowd of people in difficult conditions and this 6as the Mleast intrusiveI means of protecting the public from violent

!issenting Ho6ever. consider the dissenting :udg ent of 5udges Tul"ens. S/iel ann. and 8arli*"i; They stressed that: o $'; =n the /resent *ase. the applicants were confined within a relatively small area together with some 2 000 other /eo/le. and their freedom of movement was greatly reducedF o they were only able to stand up or sit on the ground and had no a**ess to toilet fa*ilities. food or 6ater; o The *ordon 6as aintained through the /resen*e of hundreds of riot /oli*e offi*ers and the applicants were entirely dependent on the police officers# decisions as to 6hen they *ould leave;

o 4urthermore the police could use force to !eep the cordon in place. and refusal to comply with their instructions and restrictions 6as punishable by a prison sentence and could lead to arrest; o All the applicants were contained in those conditions for six to seven hours.

10.A "errorism policing and criminal justice !! "T#$% & $D#"' 8earey et al;. Cha/ter $> /tate deprive liberty when against terrorism A concern with terrorism and the rule of law is a re*urrent the e in this sub:e*t guide. and it is worth lin!ing our comments on policing with our studies of this /roble in other *ha/ters. particularly in %hapter ? on the judiciary. 3ead 5agoAs analysis 0in 8earey et al;. Cha/ter $>2 of the *onseBuen*es of the A6ar on terroris A on /oli*ing; 3ago#s comments on policing correspond 6ith Caroness KennedyAs argu ent that #no state should be assumed# to be benign 0)egal *onundru s in our brave ne6 6orld 0)ondon: S6eet and Ma-6ell. 411'2. //;'$-42;

 Although there are legitimate requirements that the community is protected against terrorists. there is also the ris! that the state uses the threat of terrorism to increase its own coercive powers. 9e should not assume that increasing police powers or for s of /reventative detention are the best way to deal with the threat of terrorism; This argu ent returns to the idea that policing should be by consent; ,hat role do human rights play in this approach to terrorismB

$uman 0ight as the fundamental to against terrorism Consider the follo6ing argu ent fro Ivan *imonovic D5 Assistant *ecretary-<eneral for 8uman ;ights 041$42: o =n the global *onte-t. /arti*ularly sin*e 411$. it has often been argued that human rights considerations must be secondary to a *tate#s *ounter terroris ob:e*tives; o 8uman rights and security are seen as being at two opposite ends of a s/e*tru that cannot be reconciled. o At best. a**ording to this vie6. s/e*ifi* human rights or fundamental freedoms must be balanced against specific security reBuire ents;

o Cy the sa e logi* -<overnments cannot be expected si ultaneously to deliver - both security and freedom of expression. religion and beliefF protection from acts of terrorism and freedom from torture and other for s of ill treat ent. habeas *or/us and the /resu /tion of inno*en*e; o "his reasoning is flawed as it ignores two fundamental facts: o ,irstly. the international protection of human rights derives from a need for security and serves to enhance security; o Se*ondly. the provision of security to individuals under their :urisdi*tion is itself a duty of *tates under hu an rights la6; o =t is part of one of the most basic human rights

obligations: the protection of the right to life.

o %ountering terrorism is therefore. in itself. a human rights objective. o The provision of human rights protection and the provision of security are not competing. but complementary obligationsF not subseBuent. but simultaneous obligations. o "hey should be part of the same strategy to effectively protect the population. and /art of the sa e obligation of the State to /rovide hu an se*urity; #;;;( o 5ot only is there no contradiction bet6een /rote*ting hu an rights and *ountering terroris . but protecting human rights itself actively contributes to the countering of terrorist a*tivity effe*tively;

o The 8lobal Counter-Terroris Strategy a"es this *lear by identifying respect for human rights and the rule of law as the fundamental basis of the fight against terrorism. o *ome measures ta!en to counter terrorism pose grave challenges to the protection and promotion of human rights and can be selfdefeating; o Measures that violate human rights ris! undermining the very goals that *tates see! to achieve in countering terrorism. and *an even increase radicali+ation that can lead to extremist violence. 0666;oh*hr;orgEENENe6sEventsE@ agesE!is/layNe6s;as/-D Ne6s=!L$4?>+N)ang=!LE2

 *imonovic argues that human rights and security are compatible ideas; It would be wrong to see the two terms as existing in a contradictory relationship; ,or a start. the right to life relates to the state#s duty to protect its citi+ens fro terrorist violen*e; Se*ondly. human rights #actively contribute# to #countering# terrorism. 4ailure to respect human rights leads to a withdrawal of trust in the state and its agencies and may even exacerbate the conditions that cause individuals to resort to violence in the first place; Although Si onovi* does not s/ell it out. his argu ents about human rights are compatible with our

arguments about legitimate policing; 'egitimate policing does not rely on coercion. and attempts to build trust between law enforcement officers and the communities they serve; Cne could assume that respecting the human rights of suspects would help achieve this end;

10.? Arrest =**=5"IA' ;=A$I5< 8earey et al;. Cha/ter $> 9hatever 6e ight say about legiti ate /oli*ing. one has to confront the fact that police powers will inevitably be coercive; ,or a rule of la6 so*iety. these coercive powers have to be defined and limited by safeguards. 9e 6ant to thin" about these issues 6ith referen*e to the la6 on arrest; Arrest is the point when the liberty of the subject is suspended and the power of an executive agency of the state is brought to bear on the individual. 9hat legiti ises arrest /o6ersD

 Clearly. there is a legitimate interest in the policing of crime. and powers of arrest are necessary in this *onte-t; 9e 6ill argue that the law does indeed ta!e the issue of legitimacy seriously. and 6e 6ill study the 6ay in 6hi*h arrest powers are defined by the law. Se*tion .791-2: of 6A%= outlines the definition of an arrestable offence; 9e are /ri arily *on*erned 6ith the /o6er to arrest without warrant. The more important section is s..797:. 6hi*h defines the power of arrest; =t is a little diffi*ult to follo6. be*ause first it defines the *iti7enAs /o6er of arrest. before turning to the /o6er that a /oli*e offi*er has: 0'2 Any /erson ay arrest without a warrant-

0a2 anyone 6ho is in the act of committing an arrestable offenceF 0b2 anyone 6ho he has reasonable grounds for suspecting to be *o itting su*h an offen*e; 0<2 9here an arrestable offen*e has been *o itted. any /erson ay arrest 6ithout a 6arrant0a2 anyone 6ho is guilty of the offenceF 0b2 anyone 6ho he has reasonable grounds for suspecting to be guilty of it; 0>2 9here a *onstable has reasonable grounds for sus/e*ting that an arrestable offen*e has been *o itted. he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offen*e; 0+2 A *onstable 6arrantay arrest 6ithout a

0a2 anyone 6ho is about to *o it an arrestable offen*eF 0b2 anyone 6ho he has reasonable grounds for sus/e*ting to be about to *o it an arrestable offen*e;

 6A%= preserves. at s;4'0'2 and 0<2. the /o6er of any individual to a"e an arrest if there are reasonable grounds to believe that an arrestable offen*e is in the /ro*ess of being *o itted or 6hen an arrestable offen*e has been *o itted; The /o6ers of arrest given to /oli*e offi*ers are ore e-tensive; A police officer can arrest on reasonable grounds of suspicion that an arrestable offen*e has been *o itted; =n other 6ords. an officer is effectively protected from a civil action if he a"es an arrest and an offence has not been committedG s..796:. Moreover. a constable has a preventative power of arrest 9s..79A:: 6hi*h a /rivate *iti7en does not have;

 "he only exception is when an imminent breach of the peace is anticipated. A citi+en 9as well as a constable: may then ma!e a preventative arrest;

10.?.1 ,hat is reasonable suspicionB The "ey reBuire ent of Areasonable sus/i*ionA is based on the infor ation available to the arresting offi*er at the time that they ma!e the arrest: see 3ed ond-Cate v !@@ #$%%%( C This /rin*i/le is elaborated by a later *ase: Clar"e v !@@ 0Unre/orted. $' Nove ber $%%+2; =t ust be ade *lear to the court what the officer had in mind when they made the arrest; Castorina v Chief Constable of Surrey 0$%&&2 $?& is one of the a:or *ases; =t is interesting to loo" at the de*ision of the trial :udge 6ho defined Areasonable *auseA 0under s;40'2 of the Cri inal )a6 A*t $%>+. no6 s;4'0>2 @ACE2 as Ahonest belief founded u/on reasonable sus/i*ion leading an ordinary *autious an to the *on*lusion that the /erson arrested 6as guilty of the offen*eA;

 This argu ent 6as founded on the authority of !u bell v 3oberts 0$%''2. 6hi*h a//lied to arrests the /rin*i/le that Aeveryone is inno*ent until /roven guiltyA; "he %A disagreed with the argument of the trial judge asserting that the proposed test was too severe. "he %A stressed that the test should be objective; o The trial :udgeAs referen*e to Ahonest beliefA 6as thus isleading. as it raised a Buestion of sub:e*tive belief; It would appear that reasonable cause does not mean that an ordinary cautious man would conclude that the person was guilty of the offen*eF it was enough to suspect that he was guilty.

 8olgate-)ohammed v $u!e #$%&'( The House of )ords deter ined that A6here a /oli*e offi*er reasonably sus/e*ts an individual of having *o itted an arrestable offen*e. he may arrest that person with a view to questioning her at the police station#. "his decision can only be judicially reviewed if the constable acted improperly by ta!ing something irrelevant into account. =n ter s of the common law definition of arrest. the element of compulsion is also essential. The arresting officer must. therefore. indicate that the suspect is under arrest either physically or orally. The /roble in relation to indicating arrest by oral eans alone is that

it may not necessarily indicate the required compulsion; =t is suggested that if a police officer told a suspect orally that they were under arrest. and the detainee escaped before being physically restrained. the arrest is not complete. See Alderson v Cooth #$%>%( 4 IC 4$>; Note: the requirements under s..? 9see below: are stri*tly separate from this necessity to indi*ate that the detainee is under *o /ulsion;

10.?.. Arrest formalities As 6e sa6 above. at *o on la6 it 6as ne*essary for the /erson a"ing the arrest to a"e it *lear to the /erson under arrest. by either 9a: physical means or 9b: orally. that they had been arrested; 6A%= supplements the common law with further requirements. An arrest under @ACE has to eet 6ith *ertain for alities *ontained in s;4&0$2. 6hi*h states that the arrest is not lawful until the person arrested is told of the reason for arrest as soon as practicable after the arrest;

 Under s;4&0?2 an arrest is not lawful unless the arrestee is informed of the ground for arrest: Christie v )ea*hins"y #$%'+( gives the reason: o a person is prima facie entitled to personal freedom #and( should "no6 6hy for the ti e being his /ersonal freedo is being interfered 6ith;;; o 5o one I thin! would approve of a situation in 6hi*h 6hen the /erson arrested as"ed for the reason. the policeman replied #that has nothing to do with youG come along with me..;A o And there are practical considerations;;O the *harge;;; is then and there ade "no6n to hi . he has the opportunity of giving an explanation of any misunderstanding or of *alling attention to the other /ersons for 6ho he ay have been ista"en. 6ith the result that further inBuiries ay save hi fro the *onseBuen*es of false a**usation

 =n 'ewis v %hief %onstable of *outh ,ales #$%%$( the plaintiffs were told of the fact of the arrest. but the police delayed telling them the grounds. The %A stated that an arrest arose as a question of fact from the deprivation of a person#s liberty; As it was a continuing act. what had started as an unlawful arrest could become a lawful arrest; In other words an arrest becomes lawful once a ground is given.

 $66 v 8aw!ins #$%&&( is authority for the fa*t that if it is not practicable for reasons to be given at the ti e of the arrest. the arrest is lawful and remains so until such time as reasons should be given. The arrest does not need to be *onfir ed by 6ords 0su*h as. A= arrest youA2. a statement of the fact of the arrest is sufficient. =n Abbassey #$%%1( there 6as no need for the technical or precise language to be used. provided the person !new that they had been arrested; "his was a question of fact to be answered by the jury.

 8owever. the reason given must be the correct reason. #If an incorrect reason is given the arrest is unlawful#: see !@@ v Ed6ards and Mullady v !@@; =n ,o-. Ca /bell and Hartley v UK0$%%12 $? EH33 $<+. the principle developed in Abbassey was confirmed by the =%t8; as coherent with Article @9.: of the %onvention. An arrest is not made unlawful if undue force is used: see Si /son v Chief Constable of the South Hor"shire @oli*e 0$%%$2 $?< Sol 5o ?&? 0CA2;

10.> =vidence and the trial ESSENT=A) 3EA!=N8 o 8earey et al;. Cha/ter $> =n 8earey et al;. 3ago argues that the overreliance on expert evidence has negative consequences for the *ri inal :usti*e syste ; Ma"e notes on this se*tion of the *ha/ter. and re e ber to review your studies of the miscarriage cases as they also suggest that expert evidence is not infallible.

10.>.1 %onfession evidence ESSENT=A) 3EA!=N8 o 6A%= s.A6. *.A6 A6 %onfessions. 0$2=n any /ro*eedings a *onfession ade by an a**used /erson ay be given in eviden*e against hi in so far as it is relevant to any atter in issue in the /ro*eedings and is not e-*luded by the *ourt in /ursuan*e of this se*tion; 042=f. in any /ro*eedings 6here the /rose*ution /ro/oses to give in eviden*e a *onfession ade by an a**used /erson. it is re/resented to the *ourt that the *onfession 6as or ay have been obtainedK 0a2by o//ression of the /erson 6ho ade itF or

 0b2in *onseBuen*e of anything said or done 6hi*h 6as li"ely. in the *ir*u stan*es e-isting at the ti e. to render unreliable any *onfession 6hi*h ight be ade by hi in *onseBuen*e thereof. the *ourt shall not allo6 the *onfession to be given in eviden*e against hi e-*e/t in so far as the /rose*ution /roves to the *ourt beyond reasonable doubt that the *onfession 0not6ithstanding that it ay be true2 6as not obtained as aforesaid; 0?2=n any /ro*eedings 6here the /rose*ution /ro/oses to give in eviden*e a *onfession ade by an a**used /erson. the *ourt ay of its o6n otion reBuire the /rose*ution. as a *ondition of allo6ing it to do so. to /rove that the *onfession 6as not obtained as entioned in subse*tion 042 above;

 0'2The fa*t that a *onfession is 6holly or /artly e-*luded in /ursuan*e of this se*tion shall not affe*t the ad issibility in eviden*eK 0a2of any fa*ts dis*overed as a result of the *onfessionF or 0b26here the *onfession is relevant as sho6ing that the a**used s/ea"s. 6rites or e-/resses hi self in a /arti*ular 6ay. of so u*h of the *onfession as is ne*essary to sho6 that he does so; 0<2Eviden*e that a fa*t to 6hi*h this subse*tion a//lies 6as dis*overed as a result of a state ent ade by an a**used /erson shall not be ad issible unless eviden*e of ho6 it 6as dis*overed is given by hi or on his behalf; 0>2Subse*tion 0<2 above a//liesK 0a2to any fa*t dis*overed as a result of a *onfession 6hi*h is 6holly

e-*luded in /ursuan*e of this se*tionF and 0b2to any fa*t dis*overed as a result of a *onfession 6hi*h is /artly so e-*luded. if the fa*t is dis*overed as a result of the e-*luded /art of the *onfession; 0+2Nothing in @art J== of this A*t shall /re:udi*e the ad issibility of a *onfession ade by an a**used /erson; 0&2=n this se*tion Po//ressionQ in*ludes torture. inhu an or degrading treat ent. and the use or threat of violen*e 06hether or not a ounting to torture2; #,$0%29here the /ro*eedings entioned in subse*tion 0$2 above are /ro*eedings before a agistratesR *ourt inBuiring into an offen*e as e-a ining :usti*es this se*tion shall have effe*t 6ith the o ission ofK 0a2in subse*tion 0$2 the 6ords Pand is not e-*luded by the *ourt in /ursuan*e of this se*tionQ. and

 0b2subse*tions 042 to 0>2 and 0&2;( %ommentary 9e *an also *onsider *onfession eviden*e; The most important provisions concerning confession evidence are *ontained in s;+> of @ACE; A confession is defined as evidence which goes against the accused person; =f there is any suggestion that the *onfession 6as obtained either by the #oppressionA of the a**used. or #in consequence of anything said or done which was li!ely. in the *ir*u stan*es e-isting at the ti e. to render unreliable# the evidential value of the *onfession. the court will not allow the evidence to be used in *ourt - unless the prosecution proves that the confession was not unfairly obtained;

 The e-*lusion of the *onfession does not affe*t. ho6ever. the ad issibility of eviden*e dis*overed fro the *onfession; Cppression is defined at subs.9?: as including #torture inhuman or degrading treatment and the use or threat of violence#.

10.>.. Inadmissible evidence 9s.A?: Se*tion +> of @ACE has to be seen as 6or"ing in *on:un*tion 6ith s;+&; Se*tion +& allo6s a *ourt to refuse to allo6 eviden*e - so this is wider than just confession evidence - on 6hi*h the /rose*ution see" to rely if it see s to the *ourt that. 6ith regard to all the *ir*u stan*es. the admission of evidence would have such an adverse effect on the fairness of the /ro*eedings that the *ourt ought not to ad it it; 6A%= leaves in place the common law power to exclude prejudicial evidence: see s;&40?2; Se*tion <> *onfers the right to have someone informed of your arrest. "his is bolstered by the right to have access to legal advice at s;<&; "his is the right to privately consult a solicitor at any time.

 The *ourts *onsider the breach of s.@? to be a very serious matter. see 3 v Sa uel #$%&&( $<4 5@ 4<? 0CA2. which quashed a conviction for robbery. and A brose v Harris #41$$( HC5AC $$>;

10.>.2 *entencing and prisons ESSENT=A) 3EA!=N8 8earey et al;. ASenten*ing: art or s*ien*eDA and AOver*ro6ded /risons: a *risis of nu bers and *onditionsA; A%"IEI"F 10.@ ASenten*ing is a not /oliti*iansA; $o you agreeB atter for :udges.

10.>.7Is there a crisis in the prison systemB 9e 6ant to *on*lude this se*tion by referring again to 4oucault#s thin!ing on the prison: o (ut perhaps one should reverse the problem and as! oneself what is served by the failure of the prisonJ o 6hat is the use of these different /heno ena that are *ontinually being *riti*i7edF the aintenan*e of delinBuen*y . the en*ourage ent of re*idivis . the transfor ation of the o**asional offender into a habitual delinBuent. the organi7ation of a *losed ilieu of delinBuen*y;

o 6erhaps one should loo! for what is hidden beneath the apparent cynicism of the penal institution which after purging the convicts by means of their sentence. *ontinue to follo6 the by a 6hole series of AbrandingsA ;;;and 6hi*h thus /ursues as a AdelinBuentA so eone 6ho has a*Buitted hi self of his /unish ent as an offenderD o Can 6e not see here a *onseBuen*e rather than a *ontradi*tionD o If so one would be forced to suppose that the prison. and no doubt /unish ent in general. is not intended to eliminate offences. but rather to distinguish them to distribute them. to use the F that is not so much that they render docile those that are li"ely to transgress the la6. but that they tend to assimilate the transgression of the laws in a general tactics of subjection. 0,ou*ault. $%+<. /;4+42

 And this fro $ignan:

%avadino and

o The *risis of legiti a*y. it is 6orth re/eating. is at least threefold; o The penal system needs to legitimate itself with different groups of people: o 6ith the public 0in*luding /oliti*ians. *o entators et*;2. 6ith penal staff 0in*luding /rison staff and /robation offi*ers2 and 6ith penal subjects 0/risoners. /robationers and others 6ho are sub:e*t to /enal treat ent2; o 4ailing to satisfy the sense of justice of these different audien*es leads to the alarming visible #symptoms# of the crisis: political problems industrial relations problems. malaise among prison and probation staff and disorder amongst prisoners.

o =n saying that the *risis of legiti a*y is *entral. 6e are saying that the penal crisis is in essence a moral crisis. o Cy this 6e do not :ust ean that any /eo/le believe that the syste is un:ust; o As we hope to ma!e clear ... the penal system is indeed in our opinion the sour*e of very substantial injustice. and the crisis is unli!ely to be solved unless this injustice is mitigated. 9M; Cavadino and 5; !ignan The /enal syste : an introdu*tion 0)ondon: Sage. 411+2 /;?42

10.10 ,hat ma!es criminal trials fairB =**=5"IA' ;=A$I5< o 8earey et al;. Cha/ter $? AThe value of /arti*i/ationA; (oral authority) participation 1more important2, integrity and open justice 9e 6ill no6 *ontinue our *on*ern 6ith *ri inal eviden*e. but from the perspective of the criminal trial itself. 9e are no6 *on*erned 6ith the principles that ma!e a criminal trial fair. 3e e ber that 8earey et al; argues in Cha/ter 4 that the criminal court needs the moral authority to punish citi+ens if they are in brea*h of the *ri inal la6; The moral authority to /unish is under/inned by three /rin*i/les: integrity. participation and open justice;

 Our argu ents about the independence of the court and the prohibition on the bias of the :udge are as relevant in this context as they are to our dis*ussion of *ivil :usti*e; Si ilar *o ents *ould be ade about the principle of open justice. 9hat 6e 6ant to stress in our follo6ing analysis is the importance of participation in the criminal trial. To understand the role of /arti*i/ation in the *ri inal trial. re e ber the *o ents on the nature of the normative theory of the trial 0Cha/ter 4 of 8earey et al;2; Con*entrate on ho6 the /rin*i/le of /arti*i/ation a"es sense in the *onte-t of the *ri inal trialF in /arti*ular. the reason why the principle has to be limited to ta!e account of the coercive power of the state and its agencies.

10.10.1 "he burden of proof and the presumption of innocence ESSENT=A) 3EA!=N8 o 8earey et al;. Cha/ter $? AThe value of /arti*i/ation: the rights of the defen*e. eBuality of ar s and a**ess to :usti*eA. se*tion entitled AThe /resu /tion of inno*en*e and the /rivilege against self-in*ri inationA; As 6e suggested above. in order to ensure a fair trial. the rights of the defendant have to be recognised. This ta"es us to a fundamental principle: the burden of proof and the presumption of innocence. 5ote how the burden of proof can be understood in the light of the principles 6e 6ere dis*ussing in Se*tion S above; The accused does not have to ta!e part in their trial. and does not bear the burden of proof.

 The fa*t that the prosecution bear the burden of proof means that they have to prove the guilt of the defendant beyond reasonable doubt.

"he presumption of innocence The presumption of innocence *an be seen as those rules of evidence that define #the burden and standard of proof# in criminal proceedings; Eiscount *an!ey#s s/ee*h in ,oolmington v $66 #$%&<( is a *lassi* state ent of the role of the /resu /tion in a *ri inal *ourt; "he prosecution must prove that the accused is guilty of the *ri e0s2 for 6hi*h they have been *harged; The prosecution also bears the burden of proof 0re e ber that although the /rose*ution *arry the burden of /roof there may be certain issues that the defence has to prove during the trial. 9e *ould thus s/ea" of shifting the burden of /roof2; The /rose*ution ust sho6 that the a**used is li"ely to be guilty beyond reasonable doubt;

 8ow has the court defined reasonable doubtD Senior judges have /referred not to offer a global definition. ,urther ore. they have asserted that. in general. the presumption of innocence must be related to the maintenance of the integrity of the criminal justice system and public confidence in it;

*alabia!u v 4rance =n Salabia"u v ,ran*e 0A// no $1<$%E&?2 the =%t8; considered the presumption of guilt under the 4rench %ustom %ode; The /roble for the ECtH3 6as not so u*h the e-isten*e of the /resu /tion but whether or not it prevented the %ourt from genuinely trying the case. =n Salabia"u. although the presumption was almost impossible to rebut. a defence was available to the applicant; This was not a breach of Article 6. even though the defence had the burden of proof of showing that the defence applied; Hoang v ,ran*e $%%4 $> EH33 <? *larified the general /rin*i/le: the primary burden of proof must be borne by the prosecution.

6rivilege against self incrimination The /rivilege against self in*ri ination. li"e the /resu /tion of inno*en*e. relates to whether or not certain !inds of evidence can be used in a criminal trial. The privilege is in fact a set of principles that relate to different !inds of evidence and the justification for their admission or exclusion from a trial. 9e *ould also ma!e a distinction between pre-trial silence 0for e-a /le. a refusal to ans6er /oli*e Buestions2 and a particular !ind of evidence: the accused#s silence during the trial. The *ourts have been *areful not to equate silence with guilt. and u*h of the case law concerns quite how the accused#s silence could be used in court;

 The %riminal =vidence Act 1?>? laid down the /rin*i/le that silen*e during trial *ould be *o ented on by the /rose*ution. and a nu ber of authorities have *larified this /rin*i/leF in /arti*ular. the precise words that the judge could use in commenting on the accused3s silence in court* The %riminal 3ustice and 6ublic Crder Act 1>>7 changed the law. but the case law on the relevant sections of this Act suggests that a judge needs to be very careful 6hen commenting on an accused#s silence. Arti*le > in relation to the /rivilege against self in*ri ination and unfairly obtained eviden*e The "ey *ases are Saunders v UK 0A// no $%$&+E%$2. 5ohn Murray v UK 0A// no $&+?$E%$2 and Condron v UK 0A// no ?<+$&E%+2;

 =n *aunders. the ECtH3 held that #the right not to be compelled to contribute incriminating evidence# was #implicit# in Article 6 and should be #lin!ed# to the #presumption of innocence# 6hi*h 6as Ae-/ressly guaranteedA by Arti*le >042; =n 3ohn )urray v DH. the ECtH3 *onsidered that the right to silence was open to qualification and was not an absolute right. ,urther ore. prosecution comments on an accused#s silence did not amount to improper compulsion. %ondron v DH sa6 the ECtH3 ruling on s;?' of the Cri inal 5usti*e and @ubli* Order A*t $%%'; =n /arti*ular. the =%t8; found that the imprecise guidelines issued to the jury by the judge did amount to a breach of Article 6.

10.11 =quality of arms ESSENT=A) 3EA!=N8 o 8earey et al;. Cha/ter $? se*tion entitled AEBuality of ar sA; ,hat is equality of armsB ,ollo6ing Tre*hsel 0Hu an rights in *ri inal /ro*eedings; 0O-ford: O-ford University @ress. 411>22 6e *an understand eBuality of ar s in the follo6ing 6ay; Note that Article 6 does not itself mention the do*trine; The =%t8; has developed equality of arms from the Article. The foundation of the /rin*i/le is that #each party must be afforded a reasonable opportunity to present his case - in*luding his eviden*e - under conditions that do not place him at a disadvantage vis-a-vis his o//onentA 0Tre*hsel. 411>. /;%>2;

 The doctrine applies to both civil and criminal casesF and has obviously been develo/ed in different 6ays to deal 6ith the differen*es bet6een *ivil and *ri inal litigation; The general /rin*i/le. as outlined by the ECtH3. is that there should be a #fair balance# between parties. =n civil cases. this means that each party must be given a #reasonable opportunity to /resent his *aseA 0,eldbrugge v The Netherlands 04> May $%&>2 at /ara;''2; The fo*us of this *ha/ter. ho6ever. is on the meaning of the doctrine in criminal cases. NC: The do*trine of eBuality of ar s also a//lies in *ivil *ases; Cur focus on this course however is on the doctrine in the context of criminal procedure.

8ow have the (ritish courts understood equality of arms in criminal litigationB The "ey *ases are =dwards v DH0$> !e*e ber $%%42. 3o6e and !avis 0$> ,ebruary 41112 and ,itt v UK 0$> ,ebruary 41112; =n Ed6ards. the applicant alleged that there had been a breach of equality of ar s be*ause a 6olice %omplaints Authority report into the investigation of his prosecution was not ta!en into account in his appeal or his /etition to the )ord Chan*ellor; =n /arti*ular. Ed6ards argued that the prosecution had made unfair use of evidence because they had relied on a public interest immunity certificate. 6hi*h eant that =dwards# counsel had been unable to properly examine the evidence against hi ; The ECtH3 held that there had been no breach of equality of arms.

 Although the /rose*ution had relied u/on /ubli* interest i unity. there were other chec!s and balances that meant that the %A had been able to properly consider =dwards# case. ;owe and $avis also *on*erned /ubli* interest i unity; The a//li*ants argued that the %A had not been able to examine evidence against them properly. =n an e- /arte hearing the CA held that the prosecution could ma!e use of sensitive evidence that 6as not ade available to the defen*e; *omewhat later it transpired that the prosecution#s evidence was obtained by a paid informer; "he =%t8; held that the ex parte consideration of the evidence in question by the %A was unfair and that the /rose*ution had en:oyed an advantage over the defen*e;

 4itt can be distinguished from ;owe and $avis. 6here evidence obtained from a police informer could be used in a trial without disclosure to the defence without giving the prosecution an unfair advantage over the defence be*ause of the chec!s and balances that existed in the criminal trial. Ho6ever. note the powerful dissenting o/inions in this *ase and the argument that there should be a special counsel to consider evidence obtained from informers;

10.1. Article 6 and hearsay evidence ESSENT=A) 3EA!=N8- ; v 8orncastle #411%( =n 8orncastle. the *upreme %ourt 9*%: refused to follow the =%t8; in Al-Kha6a:a N Tahery v UK; Al-Kha6a:a sa6 the ECtH3 a//ly the Asole or de*isive ruleA on hearsay eviden*e to the *o on la6; "his rule held that the rights of the defendant are #unduly restricted# if a *onvi*tion Ais solely or ainly based on eviden*e /rovided by 6itnesses 6ho the a**used is unable to Buestion at any stage of the /ro*eedingsA

8earsayG the scheme of the %3A .002 =vidence is normally given by a witness who is present in person in the court; The 6itnessAs eviden*e *an thus be tested and their *lai s assessed; 8earsay evidence is #evidence which is not so given. but rather is given second hand whether related by a person to whom the absent witness has spo!en. contained in a written statement of the absent witness. given in the for of a do*u ent or re*ord *reated by hi . or other6ise;A The la6 of England and 9ales has nor ally *onsidered that hearsay eviden*e is inad issible. and thus *annot be given in *ourt; 8owever because a #blan!et ban# on hearsay evidence would itself

be unjust. exceptions have developed; This has. in turn. led to problems with the coherent development of the law. The %3A .002 relates to identified but absent witnesses. It does not permit the admission of the evidence of anonymous witnesses; As far as anony ous 6itnesses are *on*erned the ECtH3 *ase !oorson v The Netherlands introdu*ed the Asole or de*isiveA test 6hen hearsay eviden*e 6as used in a *onvi*tion of a defendant; As far as identified but absent 6itnesses are *on*erned. the court must engage in a #balancing exercise# necessary to see whether admission of hearsay evidence would ma!e the trial unfair. and whether or not the rights of the defence would be

compromised by ad ission of the eviden*e;

 "he position of anonymous witnesses is dealt with by the %riminal =vidence 9,itness Anonymity: Act .00? but this Act was not in question in 8orncastle. The *% in 8orncastle was critical of the ECtH3As argu ent that there could be no #counterbalancing factors# under the relevant test that would #justify# the use in court of an AuntestedA hearsay state ent that 6as the Asole or de*isiveA eviden*e used in the *onvi*tion of a defendant; 8owever under Article 692:9d: the prosecution does not have an unqualified right to A*onfront 6itnessesA - if there were no exceptions to the right to confront witnesses this 6ould effe*tively amount to a blan!et prohibition on hearsay evidence.

 The SC stressed that #a legitimate justification for the admission of the absent witness#s statement must be established and appropriate counterbalancing measures ust be ta"en to ensure that the defendant is not placed at an unfair disadvantage and his rights res/e*ted;A The SC 6ent on to hold that there is no justification in the case of an identified but absent witness for an #absolute rule that no counterbalancing measures can be sufficient# 6here hearsay eviden*e is Athe sole or de*isive eviden*e against the defendantA; o That mean there is counterbalance measure which can ensure right of D did not be deprived =n rea*hing this de*ision. the SC too" into a**ount the fa*t that the 'aw %ommission and 6arliament had rejected an absolute prohibition when hearsay evidence was sole or decisive in se*uring a /rose*ution;

 A second important factor 6as the #code set out in the %3A .002# which #provides the rigorous conditions for admissibility#. "hird. the =%t8; did not give full consideration to the issue of whether the evidence in question could itself be #assessed and tested#; Moreover. the C5A provides a #failsafe# position where the reliability of the evidence must be considered. o 4ailsafe- A device which if 9or when: it fails fails in a way that will cause no harm ,inally. as Article 6 does not contain an absolute right for a defendant to have all witnesses against them tested. the balancing test is not in breach of Article 6.

10.12 "he jury ESSENT=A) 3EA!=N8 o 8earey et al;. Cha/ter $4 se*tion entitled ACias. hu an rights and the :uryA; The :ury has /layed a *entral role in the English legal syste ; =t used to be said that the jury was one of the leading exports of the Dnited Hingdom. along 6ith football. *ri*"et. the *o on la6 and the /arlia entary syste ; =t be*a e enshrined in the US Constitution. 6here *urrently in ost *ri inal *ases the *harge is first *onsidered by a grand :ury 6ith bet6een $4 and 4? e bers; 8owever the jury is not beyond criticism;

 Cpponents of :uries argue that they are ineffective irrational and cause delayF 6roponents argue that juries bring community standards to bear can moderate the effects of harsh laws and are a protection against incompetent judges. =n recent years in the United Kingdo . there has been intense debate as to the future of the jury in criminal trials; The 5ew 'abour government was criticised for attempting to remove the right to jury trial through its various atte /ts to de*rease the defendantAs right to deter ine the ode of trial; The %riminal 3ustice Act .002 amended the 3uries Act 1>A7 by abolishing certain categories of ineligibility 0e-*luding ental disorder2. and excusal as of right.

 "he bar on judges clergy etc. was lifted; )embers of 6arliament etc. are no longer entitled to refuse to serve; "hese groups now must do jury service unless they can show good reason not to. The only limitation on jury service now is disqualified and mentally disordered individuals: no one is excused as of right. Most i /ortantly. the .002 Act made provision for applications by the prosecution for certain fraud cases to be conducted without a jury 0s;'?2 and also some cases where there is danger of jury tampering 0s.772; Dnder s.72. in cases of serious or complex fraud. the /rose*ution ay a//ly to a :udge of the Cro6n Court

for the trial to be conducted without a jury; =f the :udge is satisfied that the *o /le-ity or length of the trial 0or both2 are li"ely to a"e the trial too burdenso e to the e bers of a :ury. the judge may decide that in the interests of justice the trial should be conducted without a jury; =n de*iding this. the judge should ta!e into account any steps that could reduce the complexity or length of the trial. =f the :udge does so de*ide. then the 'ord %hief 3ustice or such judge nominated by the 'ord %hief 3ustice must approve the decision. =n the *ase of jury tampering. there would have to be a substantial li!elihood of tampering ta!ing place to ma!e it necessary in the interests of justice for the trial to be conducted without a jury.

10.12.1 "rial without a jury The *onvi*tion of the so-*alled #8eathrow heist four# at the Cld (ailey has raised concerns about the circumstances in 6hi*h the right to trial by jury may be removed for serious cases. On ?$ Mar*h 41$1 each of the four defendants received long prison sentences for their /art in the robbery; 8enry 6orter has severely criticised the reforms which allowed the trial to proceed with no jury. in an arti*le entitled ATrial by :ury is basis of Critish :usti*eA in the 8uardian 0$ A/ril 41$1 666;guardian;*o;u"E *o entisfreeEhenry/orterE41$1Ea/rE 1$Etrial-by-:ury-heathro6-*ase2;

 He says: o A profound change has o**urred in Critain 6here it is now possible for counsels and a judge to decide the fate of defendants without the involvement of 1. ordinary citi+ens -the fundamental guarantee against arbitrary state punishment re/resented so well by the use of the star chamber under Hing %harles I. He further stated that there 6ere Athree disturbing as/e*tsA of this *ase: o 4irst. the evidence against the accused was very good indeed; $arren (roc!well the inside man at 8eathrow had turned Kueen#s evidence and this see s certain to have swayed a jury which had been properly protected by the police. to find the en guilty;

o *econd the decision to go ahead without a jury was partly ta!en for financial reasons; A :ury trial 6as esti ated to *ost G> . 6hile one 6ithout a :ury *osts G$;> ; To the Cro6n @rose*ution Servi*e it see ed a no-brainer. but sin*e 6hen did 6e agree that a /rin*i/le of every defendantAs right to be tried in front of his /eers had a /ri*e on it; o Third. and most important. the defence teams were not allowed to !now the evidence of previous jury tampering. nor 6hether their *lients 6ere i /li*ated in these alleged a*tivities; The court and the public are expected to accept the word of the police that there are #sensitive issues# concerning this eviden*e and trust in their good faith; "hat is unacceptable.

 On any easure. the 8eathrow case was an unusual prosecution. The trial was the fourth attempt to prosecute the men. with each of the three previous trials collapsing.

 The CA ruled in 5une 411% 0"and others v ; #411%(2 that there 6as a serious danger that the jury could be influenced and therefore set up the fourth final and judge-only trial. Dltimately the case cost L.@ million to prosecute which was significantly more than the men stole. ,or any *o entators. the circumstances of their trial represent a dangerous precedent in terms of legal principle. On the other hand. this prosecution may also prove a rare exception and a practical solution to the diffi*ult /roble of :ury inti idation;

10.12.. %ase law on trials without a jury The )ord Chief 5usti*e has e /hasised in t6o CA :udg ents - KS v 3 #41$1( and 5. S. M v 3 #41$1( that juryless trials must be a last resort and ta!e place only in truly exceptional cases; "hese comments seemed aimed at restricting requests for juryless trials in /rose*utions of serious *ri e. following the controversial 8eathrow case. As entioned above. the %riminal 3ustice Act .002 limited for the first time the right to trial by jury in the %rown %ourt. 6here trials for serious *ri es ta"e /la*e; *ection 77 provides for the option of judge-only trials if there is a #real and present danger# of jury tampering.

 3 * ) v ; involved three men who allegedly conspired to pervert the course of public justice. The :udge had ruled that the two pre-conditions to an order for trial without a jury were satisfied. There 6as eviden*e of a Areal and /resent danger the jury tampering would ta!e place# meaning that a trial without a jury was necessary in the interests of justice; !elivering the ain :udg ent the 'ord %hief 3ustice rejected the decision in strong terms. stating that the arrangements for juryless trials introduced by the .002 Act #remains and must remain the decision of last resort# and should only be used in #extreme cases#.

 H* v ; 6as another *ase 6here there 6ere serious concerns over potential jury tampering; The *ase involved an allegation arising from a very substantial EA" fraud. Again the 'ord %hief 3ustice ruled that the concerns went nowhere near far enough to allow for a juryless trial. 3ather. #a fairly limited level of jury protection could reasonably be provided 6hi*h 6ould suffi*iently out6eigh the /otential threat of :ury ta /eringA;

 8e went on to restate the principles underlying the trial by :ury refor s. :ust as he had done in 5. S. M v 3: o 9e e /hasise the lin! between the nature of the threat and danger of jury contamination. and the steps reasonably available to be ta!en to reduce the ris! to anageable /ro/ortions and *aution against any unduly alar ist /ro/osals. alar ist. both in the sense of the li!ely adverse impact on the members of the jury themselves. and on the drains on precious police resources of providing them. He also stated that the police must actively manage jury protection. re inding the that the #new statutory arrangements do not undermine but rather confirm the need for the issues of jury protection to be handled in a realisti* and /ro/ortionate 6ayA;

 So juryless trials must not become a stress-free alternative to having to protect a jury fro influen*e; ;ather they must only occur where that protection would entail a disproportionate drain on resources. The 'ord %hief 3ustice#s strong statements of principle have gone some way to bolstering J the right to trial by jury in serious *ri inal trials in the Cro6n Court. and should ma!e it harder for juryless trials to be granted;

10.12.2 Article 6 and the jury =n this se*tion 6e 6ill *on*entrate on the i /a*t of Arti*le > on the :ury; 9e 6ill e-a ine so e "ey House of )ords de*isions. and so e rulings by the ECtH3 and the Euro/ean Co ission; Our ain Buestion 6ill be: to what extent is the jury compatible with the jurisprudence of Article 6B One of the "ey *ases is ; v )ir+a #411'( H3)3 $$; Mir7a 6as *onvi*ted of inde*ent assault; He a//ealed against *onvi*tion; His argu ent 6as based on a letter that had been written by one of the jurors and had been brought to the attention of the :udge before he /assed senten*e;

 "he letter alleged that the jury#s verdict was subject to racial prejudice; The *ourt also heard a//eals fro t6o other a//ellants; Their a//eals against their *onvi*tions for 6ounding offen*es 6ere based on letters re*eived by the Cro6n Court after the verdi*t but before senten*ing; "he letters alleged that #most of the jurors were loo!ing for a quic! verdict and had therefore decided to give a guilty verdict to both defendants even though any thought that it ight have been only one of the 6ho had *o itted the offen*eA; "he %A dismissed both the appeals holding that it 6as bound by ; v Kureshi #411$(. 6hi*h had stated the rule of secrecy of jury deliberations after verdict; "he jurors# letters were therefore inadmissible;

 The CA did. ho6ever. re it an i /ortant Buestion of la6 to the House of )ords for deter ination: were the common law rules that prohibited jury deliberations being ad itted as evidence in breach of Article 6 if that evidence suggested that the jury was not impartialB The House of )ords de*ided that: o the general common law rule was that the court would not investigate. or re*eive eviden*e about. anything said in the *ourse of the :uryAs deliberations 6hile they 6ere *onsidering their verdi*t in their retiring roo ; o Attempts to soften the rule to serve the interests of those who claimed that they were unfairly convicted should be resisted in the general public interest. if :urors 6ere to *ontinue to /erfor their vital fun*tion of safeguarding the liberty of every individual;

o =t 6as noted that in the 3e/ort of his 3evie6 of the Cri inal Courts of England and 9ales 0411$2. Auld '3 recommended that the %ourt of Appeal should be able to inquire into alleged impropriety by a jury. 6hether in the *ourse of their deliberations or other6ise; o "his would involve a substantial if not complete departure from the present law and fro its underlying /oli*ies; o Any su*h far-rea*hing refor of the la6 on this topic must be a matter for 6arliament rather than for the 8ouse in its judicial capacity. The House of )ords 6ent on to dis*uss the common law exceptions to the rule; These e-*e/tions related to the situation 6here the jury was alleged to be affected by #extraneous influences# 0although

this 6as not an issue in the /resent *ase2; Another /roble 6as also *onsidered: if it was alleged that #the jury as a whole declined to deliberate at all but decided the case by other means such as drawing lots or by the toss of a coin# then the court would intervene. as such behaviour would #amount to a complete repudiation by the jury of their only function 6hi*h. as the juror#s oath put it. 6as to give a true verdict according to the evidence#. The *ourt stressed that the rationale 6hi*h underlay the common law rule had been accepted by the =%t8;. The =%t8; had ac!nowledged that the rule was legitimate. and served #worthwhile objectives# 08regory v UK #$%%+( 4< EH33 <++2;

*mbiguous letter show jury letter, judge s &only' reminder is reasonable 9e no6 need to turn our attention to <regory. and see in a little ore detail ho6 the *ase 6as argued; <regory *on*erned the trial of a bla*" defendant for robbery; After the jury had retired to consider its verdict. a note 6as /assed to the :udge that read: o 3ury showing racial overtones. Cne member to be excused; The judge went on to show the note to both the prosecution and the defence. and warn the jury that they had to ignore any prejudice. and try the *ase on its fa*ts; "he jury found the defendant guilty by a verdi*t of $1 to 4; "he applicant argued that he had not received a fair trial and that

his rights under Arti*le > and Arti*le $' had been brea*hed; "he court held that there was no breach of Article 6. and it 6as not necessary for a judge to discharge a jury to ensure that it was impartial;

#f clearly presence of bias jury, judge have to take action This *ase *ould thus be distinguished from another important authority. ;emli v 4rance 0$%%>2 =n this *ase. the judge had not ta!en any action when a member of the jury had been overheard saying that he was a racist; "he ambiguous nature of the note that the judge received in <regory meant that the judge#s actions were reasonable;

Sander *ase #ECtH3(- /resu ed i /artial until eviden*e /roved *ontrary =f not sure then a"e investigation

=n *anders v DH 0411$2. <regory was distinguished. The a//li*ant had been *onvi*ted of *ons/ira*y to defraud; Ho6ever. his trial was adjourned because the judge received a complaint from one of the jurors that two other members of the jury had been ma!ing racist comments; "he judge then received a letter from one of the jurors apologising. and a letter from the jury as a whole denying racial prejudice. "he judge chose not to discharge the jury; He redire*ted the ;

 This for ed the basis of the a//li*antAs a//eal; The a//eal argued that the *orre*t *ourse of a*tion 6ould have been to dis*harge the :ury as there 6as a real danger of bias; The CA affir ed that the trial :udge had ta"en the right *ourse of a*tion. and the a//li*ant a//lied to the ECtH3; "he =%t8; argued that there had been a breach of Article 6. "he judge was not sure that there was not actual bias in the jury. and should have made further investigations; =n /arti*ular. there were doubts over the credibility of the letter received from the jurors. The letter had been Athe /rodu*t of a i /ro /tu res/onse and re/resented

a *olle*tive /osition of /ersons 6ith different otives for denying ra*e bias and accordingly could not be viewed as reliable as it was natural that upon accusation a person would deny racial bias#. On these fa*ts. the applicant had not received a fair trial. 9hat see s *entral to the reasoning of the *ourt is that the judge #had both been informed of a serious allegation and received an indirect admission that racist remar!s had been made#. In such a situation in the =%t8;#s view the judge should have discharged the jury. It would appear that the distinction between <regory and *ander is one of differences of fact; o Ce*ause in 8regory there is no ad it by :uror hi self 6hile in Sander. there is a/ologise letter sho6 that :uror hi self ad it he is ra*ist

10.12.7 #Are juries fairB# A a:or resear*h re/ort AAre :uries fairDA 6as /ublished in ,ebruary 41$1; This 6as a two-year long survey of juries in England and 9ales by Cheryl Tho as. @rofessor at the Centre for E /iri*al )egal Studies at University College )ondon; "he survey included more than 1 000 jurors at Cro6n Courts and a se/arate study of over >&.111 :ury verdi*ts; @rofessor Tho as su findings: arised the

o This resear*h sho6s that juries in =ngland and 9ales 6ere found to be fair effective and efficient - and should lay to rest any lingering *on*erns that ra*ially-balan*ed :uries are needed to ensure fairness in trials 6ith CME defendants or ra*ial eviden*e;

o Cut it is also clear from the research that jurors want and need better information to /erfor this *ru*ial role; o The study re*o ends that all s6orn :urors be issued 6ith 6ritten guidelines e-/laining 6hat i /ro/er *ondu*t is. in*luding use of the =nternet. and ho6 and 6hen to re/ort it; 0666;u*l;a*;u"Ene6sEne6sarti*lesE$114E$11$$+1$2 "he study also recommends that judges consider issuing jurors with written instructions on the law to be a//lied in ea*h *ase; (oth changes will help maintain the integrity of the jury system;

 The then Se*retary of State for 5usti*e. 5a*" Stra6 *o ented: o The :ury syste 6or"ing 6ell; is 6or"ing. and

o The studyAs findings on the fairness of :ury de*isions. in*luding for /eo/le fro bla*" and inority ethni* ba*"grounds. 6ill hel/ to aintain /ubli* *onfiden*e in :uries and the :ury syste ; o (ut we cannot allow complacency about the justice system. o ,e will carefully consider the recommendations for helping jurors do their job to the best of their ability; 0666;guardian;*o;u"Eu"E41$1EfebE $+E:urors-:udges-legal-advi*ere/ort2

 The re/ort *an be found here: 666;:usti*e;gov;u"Edo6nloadsE/ubli* ationsEresear*h-and-analysisE o:resear*hEare-:uries-fair-resear*h;/df Hou should read the re/ort *arefully. /arti*ularly the su ary on //; i-i-;

*ummary E-a inable areas of this *ha/ter are: the )a6ren*e =nBuiry and /oli*ing sto/ and sear*h /o6ers /o6ers of arrest /o6ers of arrest and Arti*le > "ettling in the *onte-t of /oli*ing legiti ate /oli*ing senten*ing and /risons forensi* eviden*e the :ury in the *onte-t of the Cri inal 5usti*e A*t 411? the :ury in the *onte-t of bias and Arti*le >; A question on these areas or a question that mixes together themes from these areas may appear in 6art ( of the examination.